Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
John H. Glunz,
Reversed and remanded
Wright County District Court
File No. FX-95-1692
Kristine L. Solheid, 200 N. Meridian Street, P.O. Box 114, Belle Plaine, MN 56011 (for appellant)
Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.
Appellant challenges an administrative law judge's denial of his motion to modify his child support obligation. We reverse and remand.
At the time of the dissolution, Glunz was a machine operator for Shiely Construction (Shiely). In February 1997, Shiely's general manager called a meeting and informed employees that the plant where Glunz was employed would be closing at the end of 1997. After learning of the impending shutdown, Glunz obtained employment as a wiring systems installer with Norstan Communication in March 1997 and subsequently terminated his employment with Shiely. Glunz took a pay cut from the $18.55 an hour he was making at Shiely to $9.12 an hour at Norstan. The job change benefited Glunz in that his current position at Norstan is year-round, while his former employment at Shiely was seasonal.
Glunz moved to modify his child support obligation, and a hearing was held before an administrative law judge (ALJ) on April 10, 1997. The ALJ determined that Glunz's current net monthly income is $1,242.64 and his total monthly expenses are $1495. The ALJ also found that Nelson's net monthly income is currently $300 and her expenses, combined with expenses for the parties' two minor children and Nelson's two other children, are $1,600. The ALJ denied Glunz's motion to modify his child support obligation. The ALJ also denied Glunz's motion for reconsideration.
I. Substantial Change in Circumstances
Glunz first argues that the ALJ erred in determining that there was no substantial change in circumstances rendering the prior child support order unreasonable and unfair.
The burden is on the moving party to show a substantial change in circumstances. Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996). An order for maintenance or child support may be modified after establishing that the earnings of one of the parties have substantially increased or decreased. Minn. Stat. § 518.64, subd. 2(a)(1) (Supp. 1997). If the result of applying the child support guidelines to the parties' current circumstances is "a calculated court order that is at least 20 percent and at least $50 per month higher or lower than the current support order," a substantial change in circumstances shall be presumed and the current child support order will be rebuttably presumed unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(b) (Supp. 1997). To rebut the presumption that the order is unreasonable and unfair, "the court must evaluate and make findings regarding the custodial parent's circumstances, the obligor's circumstances, and those of the children." Johnson v. Johnson, 533 N.W.2d 859, 865 (Minn. App. 1995) (citing Bock v. Bock, 506 N.W.2d 321, 324 (Minn. App. 1993)).
Glunz's current income is significantly less than the income he was earning when the child support order was entered. At Shiely, Glunz was earning $18.55 an hour and, at the time of the original child support order, had an average net monthly income of $2,640. The ALJ determined that Glunz is now earning $9.12 an hour at Norstan and has a net monthly income of $1,242.64. Glunz's income has substantially decreased,
and the current child support order may be modified. See Minn. Stat. § 518.64, subd. 2(a)(1) (permitting modification for substantial decrease in earnings).
The child support guidelines indicate that Glunz's child support obligation for his two children should be 30% of his income. See Minn. Stat. § 518.551, subd. 5(b) (1996) (delineating child support guidelines). This equates to approximately $372.79. The current child support order requires Glunz to pay $792 each month. Glunz's support obligation is more than double the child support guidelines. The current support order far exceeds the statutory threshold of 20% or $50 that creates the presumption of a need for modification. Thus, it must be presumed that there has been a substantial change in circumstances, and there is a rebuttable presumption that the current child support order is unreasonable and unfair. See Minn. Stat. § 518.64, subd. 2(b) (stating that substantial change in circumstances presumed and current support order rebuttably presumed unreasonable and unfair if child support calculated under current circumstances is over 20% or at least $50 a month higher or lower than current order).
The presumption that the order is unreasonable and unfair has not been rebutted. The ALJ made findings on both parties' incomes and expenses and stated in a
conclusion of law that Glunz has the ability to pay the ordered child support. In a memorandum attached to the order denying modification, however, the ALJ stated, "The Obligor does not currently earn income sufficient to pay the obligations which have been imposed upon him." The ALJ erred in concluding there was not a substantial change in circumstances and erred in concluding that the current support order is reasonable and fair.
II. Voluntary Underemployment
Glunz next argues that the ALJ erred in concluding that he was voluntarily underemployed. Income may be imputed and a child support award may be based on that imputed income if a party is voluntarily unemployed or underemployed. Minn. Stat. § 518.551, subd. 5b(d) (Supp. 1997). A party's unemployment or underemployment is not voluntary if the condition:
(1) is temporary and will ultimately lead to an increase in income; or (2) represents a bona fide career change that outweighs the adverse effect of that parent's diminished income on the child.
The ALJ determined that Glunz voluntarily terminated his employment with Shiely. The ALJ stated in her findings of fact:
The Obligor's decision to leave Shiely Construction was premature at best. His job with Shiely Construction was not in jeopardy until December, 1997. It is likely that the Obligor could have remained with Shiely Construction even if the plant closing occurred as rumored.
In her attached memorandum, the ALJ stated, "The Obligor chose to manipulate a rumor in an attempt to decrease his earnings and ability to pay support."
We disagree. The plant closing was more than a mere rumor. In support of his motion, Glunz testified that Shiely's general manager called a plant meeting and informed all the employees that the plant would be closing. Glunz also presented a letter from Shiely's human resources manager who confirmed that the general manager had announced that the plant where Glunz was employed would be closing.
The ALJ erred in concluding that Glunz voluntarily terminated his employment with Shiely. Glunz's termination was not voluntary. It was necessitated by the impending closure of the plant where he had been employed. It is true that the closure had not yet happened, but on the evidence available to Glunz at that time, his choice to leave Shiely was not unreasonable.
III. Income Imputation
If Glunz had voluntarily become underemployed, the ALJ was required to impute income. See Minn. Stat. § 518.551, subd. 5b(d) (requiring income to be imputed if parent is voluntarily underemployed). Glunz asserts that the ALJ did not make adequate findings regarding his imputed income. Imputed income is determined by estimating earning ability based on earnings history, education, job skills, and the availability of jobs within the community for someone with similar qualifications. Minn. Stat. § 518.551, subd. 5b(d). It is not appropriate for the district court or ALJ to simply continue the ordered obligation. Kuchinski v. Kuchinski, 551 N.W.2d 727, 729 (Minn. App. 1996) (holding that district court must not impute income without considering factors in Minn. Stat. § 518.551, subd. 5b(d)).
Here, the ALJ determined that the previous child support obligation should be continued. The ALJ did not consider any of the statutory factors for imputing income under Minn. Stat. § 518.551, subd. 5b(d). The ALJ did question Glunz about other available jobs within his company. Glunz explained at the hearing that he was informed that there would be 12 jobs available for employees from his plant to transfer to and that he was 19th on the seniority list. Additionally, other jobs within different divisions may have been available, Glunz testified, but those jobs would likely start at the bottom of the pay scale.
The ALJ determined that Glunz should have stayed at his former job. Despite that finding, it is clear that Glunz's former job would likely not be available after the end of 1997. Further, the record contains a letter from the plant manager indicating that the addition of a third shift at Shiely had reduced Glunz's overtime and that Glunz's income in 1996 was 77% of his 1995 income. Even if it had been possible for Glunz to stay at Shiely, his net income had already been reduced. Thus, the ALJ erred in imputing income equivalent to Glunz's income at the time of the original child support order.
Reversed and remanded.
[ ]1 We note that motions for reconsideration do not extend the time to appeal an underlying order or judgment. Carter v. Anderson, 554 N.W.2d 110, 113 (Minn. App. 1996), review denied (Minn. Dec. 23, 1996). Prior to January 1, 1998, motions for reconsideration were not authorized by the rules. Id.; Minn. R. Gen. Pract. 115.11 (permitting motions for reconsideration in limited circumstances after January 1, 1998). Here, Glunz made his motion for reconsideration prior to the January 1, 1998, effective date of Minn. R. Gen. Pract. 115.11.
[ ] 2 Glunz asserts that the ALJ should have considered Nelson's capability to work full-time. This issue was not addressed by the ALJ and is not properly before this court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating reviewing court generally addresses only issues presented to and considered by trial court); see also Frank v. Illinois Farmers Ins. Co., 336 N.W.2d 307, 311 (Minn. 1983) (stating if district court omits ruling on issue and omission not brought to district court's attention in motion for amended findings, there is nothing for appellate court to review).